Recusal could pave way for tactical forum-shopping

The recusal of magistrate Donatella Frendo Dimech from hearing the case against the trio accused of the murder of Daphne Caruana Galizia may have paved the way for a potentially difficult situation.

Under the Code of Organisation and Civil Procedure, judges or magistrates may abstain or be challenged from presiding a case if related by consanguinity or affinity in a direct line, by  consanguinity or affinity  in  the  degree  of brother, uncle or nephew, grand-uncle or grandnephew or cousin, to any of the parties.

Other grounds include where the judge or magistrate is the tutor, curator, or presumptive heir of any of the parties; or has been the agent of any of the parties to the suit, or if any of the parties is a presumptive heir.

Professional relationships count too. If the judge or magistrate had given advice, pleaded or written on the cause  or  on  any  other  matter  connected to it in the past, or  had  previously  dealt with the case as a judge or as an arbitrator, paid any costs or acted as a witness in a cause these are also grounds to demand abstention.

Marital connections to the lawyers, whether direct or indirect are also grounds, as would be the situation where the advocate or legal procurator pleading before them is a relative of the judge or magistrate.

The law is exhaustive, going so far as to contemplate situations where the judge or his spouse has a case pending against any of the parties to the suit, or happens to be a creditor or debtor in a way that could reasonably give rise to suspicion of a direct or indirect interest in the outcome of the case.

Magistrate Frendo Dimech was due to preside over the compilation of evidence, which is a pre-trial stage when the police present the evidence they have against the accused. The magistrate would then decide whether there is enough evidence for the men to stand trial.

But Frendo Dimech’s presiding over the compilation stage was challenged by lawyers for George Degiorgio, Alfred Degiorgio and Vince Muscat, after she declared that she had been in the same class as the victim’s sister in 1983, and had maintained sporadic contact since then by exchanging birthday greetings and condolences. The defence said this could cast a shadow over the decisions she may make during the case.

Although there were no legal grounds obliging the magistrate to accept the request for her recusal, because of the principles enunciated in the courts by the Constitutional court, she accepted the defence’s request to step aside.

Prof. Kevin Aquilina, dean of the Faculty of Laws at the University of Malta, told MaltaToday that Frendo Dimech had initially flagged the fact herself to avoid potentially jeopardising the case years down the line.

Worryingly, the challenge to the magistrate could have the effect of opening the proceedings to forum shopping – facilitated by Malta’s small size and the fact that Caruana Galizia’s writings had touched upon, directly or indirectly, many of the potential candidates.

Criminal cases are assigned to magistrates by lot from a pool of magistrates who handle criminal matters, but if the chosen member of the judiciary is forced to refrain from hearing the case, the replacement is chosen directly by the Chief Justice.

“This is not a process regulated by any specific law, it is an internal procedure,” explains Director General of Courts Frankie Mercieca. In this case, while magistrate Frendo Dimech had been chosen by lot, her replacement, Magistrate Charmaine Galea, was hand-picked by the Chief Justice.

It is not impossible that such a challenge be made to every magistrate assigned to the case – legal sources say such a situation had happened just once, in the distant past.

This is a possibility, Prof. Aquilina says, but it all depends on what happens in court tomorrow. “We just have to wait and see.”